STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 17, 1970

Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-53

Declaration of candidate set forth in SDCL 12-6-5 must be executed prior to circulation of nominating petition. A nominating petition presented which affirmatively shows that circulation predated declaration of candidate should not be filed. SDCL 12-6-8

Dear Miss Larson:

Much public interest has been evidenced to this office relative to whether or not the formal declaration of a candidate must be in existence before the petition for his nomination is circulated to obtain the requisite number of signatures so that such candidate may have his name on the ballots for the primary elections. Because of this public interest, I am addressing this official opinion to you.

SDCL 12-6-8 provides:

No person shall sign the nominating petition of a candidate more than one hundred twenty days prior to the date of the primary election, nor for whom he is not entitled to vote, nor of a party of which he is not a member, nor of more than the number of candidates required to be nominated for the same office. Every signeer shall add to his signature his place of residence, and the date of signing. The formal declaration of the candidate shall accompany and be a part of the petition. Such petition shall be verified under oath by the persons circulating the same, attesting the legality of the signatures thereto.

While I have set forth SDCL 12-6-8 in its entirety, only the underlined portion of such statute is in question insofar as this opinion is concerned. I may add that SDCL 12-6-5 sets forth the form of a nominating petition, including such declaration of the candidate,

Our Supreme Court in State ex rel Picton v. Doolittle (1926) 50 SD 298, 209 NW 851, and State ex rel Hitchcock v. Till (1926) 50 SD 346, 210 NW 157 had occasion to discuss the necessity of a candidate's declaration under the then existing system of nominating by party caucus, rather than by the circulation of petition. The court specifically held that such declaration of the candidate was an integral part of the nominating process and lacking such declaration of the candidate, such person in fact was not a candidate for public office.

While the nominating system has changed, it is my opinion that our Supreme Court would not recede from its position that the declaration of the candidate is an essential or integral part of the nominating process, and lacking such declaration, such aspirant would not be a political candidate.

In 1929-30 AGR 152 this office pointed out that each individual candidate for public office failed but a "single" petition for his candidacy. That while in many instances numerous papers designated as "nominating petitions" are circulated and signed, that in fact each of these papers constitute but a single page or sheet of the single petition for candidacy which is filed with the proper officer. This being true, the candidate need not affix the declaration of candidacy to each of such circulated sheets, but, rather, he need file only one such declaration with his single nominating petition. I am in accord with this opinion.

However, this prior opinion does not answer the question that is here presented for determination. The decisive question presented is:

When must this declaration of the candidate be made?

Must such be executed prior to circulation of his "petition," or may it be made after the several "sheets" making up such "petition" have been circulated and signed, but before such "petition" is filed with the proper official?

The language, "The formal declaration of the candidate shall accompany and be a part of the petition" in and of itself gives little assistance in determining the legislative intent. Such isolated language itself is susceptible of either interpretation. That such declaration must be made is clear, the time such declaration must be made is not clear.

The basic source for SDCL 12-6-8 is Section 4 of Chapter 118 of the Session Laws of 1929. My review of this basic statute has led me to the conclusion that the Legislature intended such declaration of the candidate to be made prior to the circulation of such petition and that such executed declaration of the candidate must be in existence prior to the obtaining of signatures thereon, and accompany the petition when filed.

Some may consider that this opinion is in direct opposition with an opinion of my predecessor reported in 1967-68 AGR 472. If there is in fact a repugnancy, any intimation to the contrary in such opinion is hereby overruled. However, it is my opinion that such 1967-68 Attorney General Opinion specifically held that the statute did not require such signed declaration to accompany each of the various "sheets" which would make up the single petition, and which such "sheets" are offered to proper electors for signing. I find nothing inconsistent with such a holding, and the interpretation I am giving to SDCL 12-6-8.

Another question that has been asked is, if the proper filing officer is presented with a single petition of a candidate, and the sheets making up such petition disclose that all signatures thereto were affixed to such "petition" prior to the date the candidate made his declaration of candidacy, should the filing officer file such petition and proceed to place the name of such nominee on the ballots for the primary election.

It is my opinion that in the circumstances described, the filing officer should refuse to file such petition because of a failure to comply with the mandatory legislative mandate.

While I recognize that State ex rel McNulty v. Glasner, 33 SD 241,145 NW 547, and State ex rel Coons v. Morrison, 61 SD 339, 249 NW 339, and cases in the same category, have pointed out the Secretary of State or the county auditor in filing petitions act only in a ministerial capacity, as distinguished from a judicial or quasi judicial capacity. However, it is my opinion that in the situation above described it is apparent on the face of the petition filed that the declaration of candidacy did not accompany, or predate the circulation and execution date. This is a failure to comply with the mandate of the statutes and is a defect that the Secretary of State or the county auditor can recognize under his ministerial duties.

Respectfully submitted,

Gordon Mydland
Attorney General